Health-Care Reform and the Constitution

A federal judge in Virginia has ruled that a key feature of Obama's
health-care reform--the mandate on individuals to buy insurance--is
unconstitutional. In due course the issue will be decided in the Supreme
Court. If you want to understand the legal issues underlying the case,
and get some guidance on how things are likely to go, you cannot do
better than read this column by Stuart Taylor.

Note that, as Taylor points out, the individual mandate may not be
the part of the policy that is most vulnerable to constitutional
challenge. (Florida and other states are challenging the law before
another federal judge tomorrow, arguing among other things that the
federal government cannot force the states to expand their Medicaid
programs.) In the end, Taylor expects the Supreme Court to go along
and uphold the reform, but don't take it for granted--especially if the
law remains unpopular. What, you mean the court would be influenced by
that? You bet it would be.

[T]he bottom line is that I think that a perhaps narrow
majority of the justices would defer to the political branches here.
The alternative would be to strike down the president's signature
initiative -- something that no Court has done in more than 70 years,
for good reason.

But what if the new law continues to remain unpopular with voters, or
even become more unpopular? What if they sweep congressional Democrats
out of power in November, or even sweep Barack Obama out of the
presidency in 2012? What if majorities of the new House and Senate
sign friend-of-the-court briefs asking the justices to strike down the
mandate, which was passed without a single Republican vote? And what
if--politics and law aside--the whole business comes to look like a
mess that can be salvaged only by a Supreme Court decision clearing the
decks for Congress to rethink health care reform from the ground up?

Such are the dreams of those who imagine the justices striking down
the proposed health care mandate. I hope that they don't all come true.
But if they do, five justices might go with the flow.